Oklahoma Answer Brief - Turtle Talk

Appellate Case: 11-7072 Document: 01018931198 Date Filed: 10/12/2012 Page: 1 

Case No. 11-7072 

___________________________________________________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

___________________________________________________________________ 

DAVID B. MAGNAN, 

Petitioner-Appellant, 

v. 

RANDALL G. WORKMAN, Warden, 

Oklahoma State Penitentiary, 

Respondent-Appellee. 

___________________________________________________________________ 

BRIEF OF RESPONDENT/APPELLEE 

___________________________________________________________________ 

On Appeal from the United States District Court 

For the Eastern District of Oklahoma 

(No. CIV-09-438-RAW-KEW) 

The Honorable Ronald A. White, United States District Judge 

___________________________________________________________________ 

E. SCOTT PRUITT 

ATTORNEY GENERAL OF OKLAHOMA 

JENNIFER L. CRABB, OBA #20546 

ASSISTANT ATTORNEY GENERAL 

st 

313 NE 21 Street 

Oklahoma City, OK 73105 

(405) 521-3921 (Voice)/(405) 522-4534 (Fax) 

Service email: fhc.docket@oag.state.ok.us 

ATTORNEYS FOR RESPONDENT-APPELLEE 

OCTOBER 12, 2012 

ORAL ARGUMENT IS NOT REQUESTED 

Brief has attachments in scanned pdf format


TABLE OF CONTENTS 

PAGE 

PRIOR OR RELATED APPEALS. ..................................................................... ix 

STATEMENT OF JURISDICTION..................................................................... 1 

ISSUES PRESENTED FOR REVIEW................................................................. 2 

STATEMENT OF THE CASE.............................................................................. 2 

STATEMENT OF FACTS..................................................................................... 4 

SUMMARY OF ARGUMENT.............................................................................. 6 

STANDARD OF REVIEW. ................................................................................... 7 

ARGUMENT AND AUTHORITY. .................................................................... 10 

PROPOSITION 

THE OCCA’S REJECTION OF PETITIONER’S 

CLAIM THAT HE COMMITTED THE MURDERS IN 

INDIAN COUNTRY IS NOT CONTRARY TO OR AN 

UNREASONABLE APPLICATION OF CLEARLY 

ESTABLISHED FEDERAL LAW................................................. 10 

A. Application of AEDPA..................................................................... 11 

B. The Surface Estate. .......................................................................... 16 

C. Resulting Trust................................................................................. 36 

D. The Mineral Interests....................................................................... 42 

CONCLUSION. .................................................................................................... 51 

STATEMENT REGARDING ORAL ARGUMENT. ....................................... 52 

CERTIFICATE OF COMPLIANCE. ................................................................ 53 

i


CERTIFICATE OF SERVICE. .......................................................................... 53 

CERTIFICATE OF DIGITAL SUBMISSIONS................................................ 53 

ii


TABLE OF AUTHORITIES 

FEDERAL CASES 

Alaska v. Native Vill. of Venetie Tribal Gov’t, 

522 U.S. 520 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 

Armstrong v. Maple Leaf Apartments, Ltd., 

th 

622 F.2d 466 (10 Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 

Bobby v. Dixon, 

___ U.S. ___, 132 S. Ct. 26 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

Burgess v. Watters, 

th 

467 F.3d 676 (7 Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

Cannon v. Gibson, 

th 

259 F.3d 1253 (10 Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 

City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 

544 U.S. 197 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30 

Crater v. Galaza, 

th 

491 F.3d 1119 (9 Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

Crow Tribe of Indians v. State of Mont., 

th 

650 F.2d 1104 (9 Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 

Douglas v. Workman, 

th 

560 F.3d 1156 (10 Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 

Evans v. Thompson, 

st 

518 F.3d 1 (1 Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

Felix v. Patrick, 

145 U.S. 317 (1892). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 

iii


Felker v. Turpin, 

518 U.S. 651 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

Gilbert v. Mullin, 

th 

302 F.3d 1166 (10 Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

Hale v. Gibson, 

th 

227 F.3d 1298 (10 Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 

Harrington v. Richter, 

___ U.S. ___, 131 S. Ct. 770 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . passim 

Hawkins v. Mullin, 

th 

291 F.3d 658 (10 Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 

Hooks v. Workman, 

th 

689 F.3d 1148 (10 Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 

House v. Hatch, 

th 

527 F.3d 1010 (10 Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23, 24, 44 

HRI, Inc. v. E.P.A., 

th 

198 F.3d 1224 (10 Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 

International Shoe Co. v. State of Wash., Office of Unemployment 

Compensation and Placement, 

326 U.S. 310 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 

Kalb v. Feuerstein, 

308 U.S. 433 (1940). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

Lewis v. Moore, 

th 

199 F.2d 745 (10 Cir. 1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 

Little Light v. Crist, 

th 

649 F.2d 682 (9 Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 

iv


Lykins v. McGrath, 

184 U.S. 169 (1902). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 

Matthews v. Workman, 

th 

577 F.3d 1175 (10 Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 

Merida Delgado v. Gonzales, 

th 

428 F.3d 916 (10 Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 25 

Miami Tribe of Oklahoma v. United States, 

th 

656 F.3d 1129 (10 Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

Mitchell v. Gibson, 

th 

262 F.3d 1036 (10 Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

Murphy v. Sirmons, 

497 F. Supp. 2d 1257 (E.D. Okla. 2007). . . . . . . . . . . . . . . . . . . . . . . 12, 42 

Negonsott v. Samuels, 

507 U.S. 99 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 

Osage Nation v. Irby, 

th 

597 F.3d 1117 (10 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 

Park Lane Resources L.L.C. v. Department of Agriculture, 

th 

378 F.3d 1132 (10 Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

Pittsburg & Midway Coal Mining Co. v. Watchman, 

th 

52 F.3d 1531 (10 Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-51 

Richie v. Workman, 

th 

599 F.3d 1131 (10 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 

Rosebud Sioux Tribe v. Kneip, 

430 U.S. 584 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 

v


Seymour v. Superintendent of Washington State Penitentiary, 

368 U.S. 351 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45 

Solem v. Bartlett, 

465 U.S. 463 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 29 

South Dakota v. Bourland, 

508 U.S. 679 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 

Spears v. Mullin, 

th 

343 F.3d 1215 (10 Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 

Steele v. Young, 

th 

11 F.3d 1518 (10 Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 

Toles v. Gibson, 

th 

269 F.3d 1167 (10 Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 

United States v. Grimley, 

137 U.S. 147 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

United States v. Jewett, 

th 

438 F.2d 495 (8 Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41 

United States v. John, 

437 U.S. 634 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 

United States v. Pelican, 

232 U.S. 442 (1914). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 

United States v. Ramsey, 

271 U.S. 467 (1926). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 45, 46 

Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah, 

th 

114 F.3d 1513 (10 Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 

vi


Valdez v. Bravo, 

th 

373 F.3d 1093 (10 Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

Williams v. Taylor, 

529 U.S. 362 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 

Williams v. Taylor, 

529 U.S. 420 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

Wilson v. Workman, 

th 

577 F.3d 1284 (10 Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 

Yellowbear v. Wyoming Atty. Gen., 

636 F. Supp. 2d 1254 (D. Wyo. 2009). . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 

STATE CASES 

Ahboah v. Housing Authority of Kiowa Tribe of Indians, 

660 P.2d 625 (Okla. Crim. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40 

Fowler v. State, 

896 P.2d 566 (Okla. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 36 

Housing Authority of the Seminole Nation v. Harjo, 

790 P.2d 1098 (Okla. Crim. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 

Magnan v. State, 

207 P.3d 397 (Okla. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . passim 

Murphy v. State, 

124 P.3d 1198 (Okla. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 42 

FEDERAL STATUTES 

16 U.S.C. § 470. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 

18 U.S.C. § 1151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 

vii


18 U.S.C. § 1153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 22 

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

28 U.S.C. § 2253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

28 U.S.C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 

STATE STATUTES 

Okla. Stat. tit. 21, § 652 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

Okla. Stat. tit. 21, § 701.7 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

Okla. Stat. tit. 22, § 1086 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 

Okla. Stat. tit. 63, § 1057. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 

FEDERAL COURT RULES 

Fed. R. App. P. 4(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

Fed. R. App. P. 32(a)(7)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 

FEDERAL REGULATIONS 

25 C.F.R., § 1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 

OTHER AUTHORITIES 

United States Const. Art. III.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

viii


PRIOR OR RELATED APPEALS 

There are no prior or related appeals. 

ix


IN THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

DAVID B. MAGNAN, ) 

) 

Petitioner/Appellant, ) 

) 

-vs- ) Case No. 11-7072 

) 

RANDALL G. WORKMAN, Warden, ) 

Oklahoma State Penitentiary, ) 

E. SCOTT PRUITT, Attorney General, ) 

State of Oklahoma, ) 

) 

Respondents/Appellees. ) 

BRIEF OF RESPONDENT/APPELLEE 

STATEMENT OF JURISDICTION 

On August 2, 2010, Petitioner filed a petition for writ of habeas corpus in the 

United States District Court for the Eastern District of Oklahoma pursuant to 28 

U.S.C. § 2254. Petition for Writ of Habeas Corpus dated 8/2/2010, docket number 

1 

24. On October 4, 2010, Respondent filed his response to Petitioner’s petition. 

Response in Opposition to Petition for Writ of Habeas Corpus dated 10/4/2010, 

docket number 27. Petitioner then filed his reply to the Warden’s response on 

November 19, 2010. Petitioner’s Reply Brief dated 11/19/2010, docket number 28. 

On August 23, 2011, the district court denied Petitioner’s request for habeas relief. 

1 Initial references to documents filed in the district court will be identified by name, date 

filed and docket number. After the initial reference, documents filed in the district court will 

be identified by docket number.


Opinion and Order dated 8/23/2011, docket number 36. Thereafter, Petitioner filed 

a notice of appeal to this Court. Notice of Appeal dated 10/24/2011, docket number 

43. The district court granted a Certificate of Appealability (“COA”) as to 

Petitioner’s sole ground for relief. Order Granting Certificate of Appealability dated 

8/23/2011, docket number 37. This Court has jurisdiction pursuant to 28 U.S.C. §§ 

1291, 2253 and Fed. R. App. P. 4(a). 

ISSUE PRESENTED FOR REVIEW 

Whether the Oklahoma Court of Criminal Appeals’ determination that the 

property on which the murders occurred was not Indian country was reasonable? 

STATEMENT OF THE CASE 

Petitioner is an inmate in state custody at the Oklahoma State Penitentiary in 

McAlester, Oklahoma, pursuant to a judgment and sentence issued in Seminole 

County District Court Case No. CF-2004-59. Petitioner waived trial by jury and pled 

guilty to three counts of first degree murder (Okla. Stat. tit. 21, § 701.7(A) (2001)) 

for the deaths of James Howard, Lucilla McGirt and Karen Wolf. Petitioner also pled 

guilty to one count of shooting with intent to kill (Okla. Stat. tit. 21, § 652(A) 

(2001)). Petitioner stipulated to the presence of five aggravating circumstances in 

connection with the murder convictions: (1) Petitioner presented a great risk of death 

to more than one person; (2) Petitioner had previously been convicted of a felony 

2


involving the use or threat of violence to the person; (3) Petitioner committed the 

murders while on parole; (4) Petitioner posed a continuing threat to society; and (5) 

the murders were especially heinous, atrocious or cruel. The trial court accepted 

Petitioner’s guilty pleas and found the existence of all of the aggravating 

circumstances as to one of the victims and all but the especially heinous, atrocious, 

or cruel aggravator as to the other two victims. The trial court sentenced Petitioner 

to death on each of the three murder counts and to life imprisonment for shooting 

with intent to kill. 

Petitioner waived his right to appeal the convictions and sentences. Pursuant 

to its duty to conduct a mandatory sentence review, the Oklahoma Court of Criminal 

Appeals (OCCA) affirmed Petitioner’s convictions and sentences in a published 

opinion filed on April 22, 2009. Magnan v. State, 207 P.3d 397 (Okla. Crim. App. 

2009). Petitioner did not file a petition for rehearing. On October 5, 2009, the United 

States Supreme Court denied certiorari review. Magnan v. Oklahoma, ___ U.S. ___, 

130 S. Ct. 276 (2009). 

Petitioner filed a petition for writ of habeas corpus in the district court on 

August 2, 2010. Doc. 24. The district court denied relief on August 23, 2011. Doc. 

36. 

3


STATEMENT OF THE FACTS 

The OCCA set forth the relevant facts in its published opinion on direct appeal. 

Such facts are to be presumed correct under the Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2254(e)(1). According to the OCCA: 

On the evening of March 2, 2004, a group of family 

and friends, James Howard, Lucilla McGirt, Karen Wolf, 

Amy Harrison, and Eric Coley, gathered at Mr. Howard's 

rural Seminole County home to celebrate Mr. Coley's 

birthday. Ms. Harrison was Ms. Wolf's daughter and Mr. 

Howard's niece. At some point, Mr. Howard answered a 

telephone call from Aaron Wolf, a co-defendant in this 

case. As the two men argued, Ms. Harrison took the 

telephone in time to hear Aaron Wolf say “I am going to 

kill that m––– f–––.” 

Later that evening, at approximately 1:00 a.m. on the 

morning of March 3rd, Magnan, Aaron Wolf, and 

Redmond Wolf, Jr., arrived at Mr. Howard's home in 

Magnan's car. Mr. Coley and Ms. Harrison went out of the 

house to meet them. As Harrison approached, Aaron Wolf 

told her to get out of there and gestured toward the woods 

behind the house. She fled. Coley tried to stop Magnan 

from going inside the house. During the resulting scuffle, 

Coley pushed Magnan to the ground. We learn what 

happened next from Coley's viewpoint. He saw what 

appeared to be a shiny gun barrel in Magnan's hand. A 

flash of flame erupted from the object and Coley realized 

he had been shot in his left side. In spite of his injury, he 

ran to the house and banged on windows trying to warn 

Howard, McGirt, and Wolf. 

After a short while, Harrison left the hiding place she 

had found in the woods and gingerly moved toward the 

4


house. As she approached, she heard gunshots from inside. 

She heard men get into the car and drive away. Harrison 

found Coley outside, preparing to enter the house. Inside, 

Coley saw Howard bloody and lying on a bed near the 

kitchen. In the bedroom he found McGirt and Wolf. Both 

women had been shot. After returning to the kitchen and 

warning Harrison against going in the bedroom where her 

mother was, he collapsed from his injuries. 

Despite Coley's admonition, Harrison went to check 

on her mother and McGirt. She found her mother and 

McGirt on the bed. Harrison knew her mother was dead, 

but saw that McGirt was still alive. She went back to the 

kitchen to check on Howard and found him covered in 

blood and apparently dead. 

During his plea colloquy, Magnan told the district 

court judge that he shot Eric Coley with the intent to kill 

him. He said he then walked into the house where he saw 

James Howard lying in a bed near the kitchen. When the 

old man looked up at him, Magnan said “goodbye” and 

shot him, intending to kill him. Magnan told the court he 

went into the bedroom intending only to say “good-bye” to 

Karen Wolf, but when she “got smart” with him, he shot 

her, intending to kill her. Magnan admitted he next shot 

McGirt, who was in the bed next to Wolf, and intended to 

kill her as well. 

James Howard and Karen Wolf died at the scene. 

Lucilla McGirt was hospitalized for approximately two 

weeks before she died of complications from her gunshot 

wounds. Eric Coley survived his gunshot injury. 

Magnan v. State, 207 P.3d 397, 401-402 (Okla. Crim. App. 2009) (internal paragraph 

numbers omitted). 

5


Additional facts, supported with citations to the record, will be discussed below 

as necessary in responding to Petitioner’s various claims. 

SUMMARY OF ARGUMENT 

Petitioner’s sole claim of error is that the land on which he committed the 

murders is Indian country. Therefore, according to Petitioner, Oklahoma did not have 

jurisdiction to try him for the murders. Petitioner’s claim is that a 1970 conveyance 

of the land in question was not approved by the Secretary of the Interior. Therefore, 

according to Petitioner, the restrictions against alienation placed on land purchased 

by Indians with restricted funds have not been removed and the property remains 

Indian country. 

Petitioner’s claim must fail as he cannot identify any clearly established federal 

law regarding the procedure to be followed to remove restrictions from land 

purchased by Indians with restricted funds. Further, a United States Trial Attorney 

appeared on behalf of the Bureau of Indian Affairs at a hearing in state district court 

regarding the sale of the land and asked the court to approve the sale of the land. The 

OCCA reasonably concluded that this was sufficient to remove the restrictions on the 

land. 

Petitioner also argues that the purported sale of the land was not really a sale 

but only created a resulting trust that did not extinguish the seller’s title. This claim 

6


was not raised in state court or in the district court. As such, the claim is both subject 

to an anticipatory procedural bar in state court and waived pursuant to federal law. 

This Court cannot consider this claim. 

Finally, Petitioner argues that 80% of the mineral interests in the disputed 

property remains in Indian hands subject to restrictions against alienation. According 

to Petitioner, the entire property must, therefore, be considered Indian country. There 

is no clearly established federal law dictating that the federal government has criminal 

jurisdiction over crimes committed on property with restricted mineral rights. In fact, 

the Supreme Court’s cases suggest otherwise. Petitioner committed the murders on 

the unrestricted surface estate, not underground where the minerals exist. 

Accordingly, whatever the status of the mineral rights, the OCCA reasonably 

determined that Petitioner was properly tried in state court. 

Each of Petitioner’s arguments will be shown below to be without merit. 

Accordingly, Respondent respectfully requests this Court affirm the district court’s 

denial of habeas relief. 

STANDARD OF REVIEW 

When a state court has reviewed a claim on its merits, federal habeas relief may 

only be granted if the state court’s decision was (1) either contrary to or involved an 

unreasonable application of clearly established federal law or (2) based upon an 

7


unreasonable determination of the facts in light of the evidence presented at trial. 28 

U.S.C. § 2254(d). Clearly established federal law refers only to the holdings, and not 

the dicta, of the United States Supreme Court at the time of the state court decision. 

House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008). Supreme Court holdings 

“must be construed narrowly and consist only of something akin to on-point 

holdings.” Id. 

A state court decision is contrary to clearly established federal law as 

determined by the Supreme Court when it reaches a conclusion opposite to that of the 

Supreme Court on a question of law or decides a case differently than the Supreme 

Court has on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 

412-413 (2000); Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001). 

A state court decision involves an unreasonable application of clearly 

established federal law when the state court correctly identifies the governing legal 

principle but applies it to the facts of the particular case in an unreasonable manner. 

th 

Valdez v. Bravo, 373 F.3d 1093, 1096 (10 Cir. 2004); Gilbert v. Mullin, 302 F.3d 

1166, 1171 (10th Cir. 2002). Further, 

under the “unreasonable application” clause, a federal 

habeas court must ask whether the state court’s application 

of Supreme Court law was objectively unreasonable. 

Therefore, under the clause, “a federal habeas court may 

not issue the writ simply because that court concludes in its 

8


independent judgment that the relevant state court decision 

applied clearly established federal law erroneously or 

incorrectly. Rather, that application must also be 

unreasonable.” 

Williams, 529 U.S. at 411. 

More recently, in Harrington v. Richter, ___ U.S. ___,131 S. Ct. 770, 786 

(2011), the Supreme Court criticized a federal court of appeals for effectively 

reviewing a petitioner’s ineffective assistance of counsel claim de novo and then 

declaring that the state court’s decision was an unreasonable application of clearly 

established federal law. The Supreme Court made clear that “[a] state court’s 

determination that a claim lacks merit precludes federal habeas relief so long as 

fairminded jurists could disagree on the correctness of the state court’s decision.” Id. 

at 786 (internal quotation marks omitted). The standard set by the AEDPA was meant 

to be difficult to meet. Id. Thus, a habeas petitioner “must show that the state court’s 

ruling on the claim being presented in federal court was so lacking in justification that 

there was an error well understood and comprehended in existing law beyond any 

possibility for fairminded disagreement.” Id. at 786-787. Even a strong case for 

relief on direct review does not mean that the state court’s denial of relief was 

unreasonable. Id. at 786. Further, the standard set by AEDPA is even more difficult 

to meet when the rule established by the Supreme Court is a general one. Id. A 

9


habeas petitioner’s ability to obtain relief is limited because habeas corpus is a “guard 

against extreme malfunctions in the state criminal justice systems not a substitute for 

ordinary error correction through appeal.” Id. 

Finally, state court determinations of fact “shall be presumed correct” unless 

Petitioner rebuts the presumption by “clear and convincing evidence.” 28 U.S.C. § 

2254(e)(1). Thus, a state court’s decision cannot be said to be based on an 

unreasonable determination of the facts until a petitioner has shown by clear and 

convincing evidence that the state court’s factual determination was incorrect. 

ARGUMENT AND AUTHORITY 

PROPOSITION 

THE OCCA’S REJECTION OF PETITIONER’S 

CLAIM THAT HE COMMITTED THE MURDERS IN 

INDIAN COUNTRY IS NOT CONTRARY TO OR AN 

UNREASONABLE APPLICATION OF CLEARLY 

ESTABLISHED FEDERAL LAW. 

In his sole proposition of error, Petitioner claims that his crimes were 

committed in Indian Country, therefore, the State of Oklahoma does not have 

jurisdiction. The OCCA reasonably determined that the property on which Petitioner 

committed the murders was not Indian country. Accordingly, Petitioner is not entitled 

to a writ of habeas corpus. 

10


A. Application of AEDPA 

Petitioner first argues that AEDPA does not apply to a state court determination 

on the question of jurisdiction. The district court implicitly rejected Petitioner’s 

argument and applied AEDPA’s deferential standard to the OCCA’s decision. Doc. 

36 at 12-13. Petitioner’s argument puts the proverbial cart before the horse and 

ignores that there is a general presumption against federal jurisdiction and he has the 

2 

burden of proving that the federal court has jurisdiction over his crimes. Merida 

Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). Therefore, Petitioner 

cannot presuppose that the OCCA does not have jurisdiction and thereby argue that 

the AEDPA does not apply. 

Without expressly arguing that AEDPA is unconstitutional, at least in the 

context of jurisdiction, Petitioner asserts that “Congress, via AEDPA, cannot curtail 

the Court’s full review of facts and law relevant to a federal court’s jurisdiction.” 

Opening Br. at 17. “While the authority of the federal courts comes from Article III 

of the Constitution, the existence of the lower federal courts . . . and the extent of 

[their] jurisdiction depend entirely on statutory grants from Congress, unlike the 

Supreme Court.” Evans v. Thompson, 518 F.3d 1, 5-6 (1st Cir. 2008). Further, “[t]he 

2 In fact, in this case, the State assumed jurisdiction based on a prior ruling by a federal court 

that the land in question was not Indian country (12/13/2007 Tr. 16). 

11


Constitution is not offended when lower federal courts are prevented from 

substituting for that of a state court their judgment as to reasonable application of 

Supreme Court precedent.” Id. at 8. AEDPA does not curtail the ability of federal 

courts to fully review the facts and law pertaining to a case. Id. at 10. It merely 

restricts the ability of federal courts to grant relief. Id.; see also Crater v. Galaza, 491 

F.3d 1119, 1128 (9th Cir. 2007) (“Section 2254(d)(1) does not restrict the federal 

courts’ power to interpret the law, but only sets standards for what state court errors 

of law require federal habeas relief.”). 

In Yellowbear v. Wyoming Atty. Gen., 636 F. Supp. 2d 1254, 1257 (D. Wyo. 

2009), a habeas petitioner claimed that the state court did not have jurisdiction 

because his crime was committed on a reservation. The petitioner argued that the 

federal court should review his habeas petition de novo. Id. at 1258. The court 

disagreed, holding that AEDPA applied “because the underlying state case was 

adjudicated on the merits.” Id. at 1258-1259; see also Burgess v. Watters, 467 F.3d 

676, 681 (7th Cir. 2006) (reviewing under the AEDPA standard of review a claim that 

the state court lacked jurisdiction to conduct involuntary civil commitment 

proceedings against an Indian); Murphy v. Sirmons, 497 F. Supp. 2d 1257 (E.D. Okla. 

2007) (applying the AEDPA standard of review to the petitioner’s claim that 

12


Oklahoma lacked jurisdiction over the murder he committed in alleged Indian 

country). 

On appeal, the petitioner in Yellowbear argued that AEDPA did not apply to 

3 

his jurisdictional claim because “[s]tate courts cannot rule on the extent of federal 

jurisdiction.” Yellowbear v. Attorney General of Wyoming, No. 09-8069, 2012 WL 

2053516, *2 (10th Cir. May 25, 2010) (unpublished). Although ultimately deciding 

that the petitioner would lose under either standard of review, this Court noted that 

state courts have concurrent jurisdiction to determine questions of federal law and the 

petitioner had offered no persuasive argument or authority to suggest that state courts 

cannot determine whether a federal statute divests them of jurisdiction. Id. 

This Court has consistently held that AEDPA deference applies so long as the 

state court decided the petitioner’s claim on its merits, rather than on procedural 

grounds. Richie v. Workman, 599 F.3d 1131, 1141-1142 (10th Cir. 2010); Wilson v. 

Workman, 577 F.3d 1284, 1291-1292 (10th Cir. 2009); Matthews v. Workman, 577 

F.3d 1175, 1180 (10th Cir. 2009); see also Richter, 131 S. Ct. at 784-785 (“When a 

3 Petitioner also asserts that lack of jurisdiction is not a “claim.” Opening Br. at 20. 

However, “Black’s Law Dictionary defines a ‘claim’ as ‘[t]he aggregate of operative facts 

giving rise to a right enforceable by a court.’” Wilson v. Workman, 577 F.3d 1284, 1291 

(10th Cir. 2009) (quoting Black’s Law Dictionary (8th ed. 2004)). Petitioner’s “claim” is that 

the land on which he committed the murders is within Indian country, thereby giving him the 

right to avoid prosecution in state court. 

13


federal claim has been presented to a state court and the state court has denied relief, 

it may be presumed that the state court adjudicated the claim on the merits in the 

absence of any indication or state-law procedural principles to the contrary.”). This 

Court’s decision in Park Lane Resources L.L.C. v. Department of Agriculture, 378 

F.3d 1132 (10th Cir. 2004), relied upon by Petitioner is inapposite. In Park Lane, this 

Court held that “jurisdictional dismissals are not ‘on the merits.’” Id. at 1136 

(emphasis added). The case had been dismissed because it was not ripe for review. 

Id. at 1135. Thus, the ruling in that case was a procedural, rather than substantive 

one, and Park Lane is not inconsistent with the cases holding that AEDPA applies to 

a state court’s resolution of the substance of a party’s claims. 

The cases cited by Petitioner involving administrative agencies, bankruptcy 

judges, military courts and the like are also inapposite. “[S]tate judiciaries have the 

duty and competence to vindicate rights secured by the Constitution in state criminal 

proceedings.” Williams v. Taylor, 529 U.S. 420, 436-437 (2000). As set forth above, 

AEDPA does not prevent federal courts from inquiring into the propriety of the 

jurisdiction exercised by the state court. Cf. United States v. Grimley, 137 U.S. 147, 

150 (1890) (holding that federal civil courts may inquire into the jurisdiction of a 

court-martial). AEDPA merely affords the state court’s resolution of a question of 

jurisdiction the respect it is due. 

14


In Kalb v. Feuerstein, 308 U.S. 433 (1940), the Supreme Court held that a 

federal bankruptcy statute deprived the state court of jurisdiction over the debtor’s 

property. That case had nothing to do with whether a federal court reviewing a 

habeas petition owed deference to the state court’s decision under AEDPA. Indeed, 

it was decided more than fifty years before AEDPA was enacted. Rather, Kalb stands 

for the unremarkable proposition that Congress has plenary power over bankruptcy 

proceedings. “The Supreme Court afforded no deference whatever to the state court 

judgment,” Opening Br. at 19-20, because there was no federal statute requiring the 

federal courts to afford deference. Accordingly, Kalb is not on point. 

The Supreme Court “ha[s] long recognized that the power to award the writ by 

any of the courts of the United States, must be given by written law, and [has] 

likewise recognized that judgments about the proper scope of the writ are normally 

for Congress to make.” Felker v. Turpin, 518 U.S. 664, 651 (1996) (internal citations 

and quotation marks omitted). Congress has chosen to limit the ability of federal 

courts to grant writs of habeas corpus to state prisoners. Nothing in AEPDA excepts 

claims of lack of jurisdiction from those limitations. Petitioner has not cited a single 

case in which a federal court has applied de novo review to a state prisoner’s claim, 

in a section 2254 petition, that the state court did not have jurisdiction over his 

15


4 

crime. The OCCA decided the merits of Petitioner’s claim. Thus, AEDPA restricts 

this Court’s ability to grant relief. 

B. The Surface Estate 

According to the Indian Major Crimes Act, any Indian who murders another 

Indian within Indian country is subject to the exclusive jurisdiction of the United 

States. 18 U.S.C. § 1153. As relevant to this case, Indian country is defined as “all 

Indian allotments, the Indian titles to which have not been extinguished, including 

rights-of-way running through the same.” 18 U.S.C. § 1151(c). There are two 

statutes that are relevant to the conveyance of allotted land. A statute enacted in 

1945, 59 Stat. 313, requires the Secretary of the Interior to approve any conveyance 

of land that was purchased with restricted funds. A statute enacted in 1947, 61 Stat. 

731, requires the county court in which the land is situated to approve any 

conveyance of land inherited by a person of one-half or more Indian blood when the 

land was restricted in the hands of the deceased. 

It is undisputed that Petitioner and his victims were Indians. Accordingly, the 

issue to be resolved by this Court is whether any fairminded jurist could agree with 

4 Petitioner’s argument also ignores that he had an opportunity for the Supreme Court to 

decide his jurisdictional challenge on direct review, without the limitations imposed by 

AEDPA. For whatever reason, Petitioner chose not to include his claim that Oklahoma does 

not have jurisdiction in his certiorari petition. A copy of the certiorari opinion is attached as 

Exhibit 1. 

16


the OCCA’s determination that the murders did not occur in Indian Country. See 

Richter, 131 S. Ct. at 786 (under AEDPA, “[a] state court’s determination that a claim 

lacks merit precludes federal habeas relief so long as fairminded jurists could disagree 

on the correctness of the state court’s decision.”) (internal quotation marks omitted); 

Bobby v. Dixon, ___ U.S. ___, 132 S. Ct. 26, 27 (2011) (refusing to grant relief 

because “it is not clear that the [state court] erred at all, much less erred so 

transparently that no fairminded jurist could agree with that court’s decision.”) 

(emphasis added). 

The land at issue is a 1.0123 acre tract that was part of a larger allotment that 

was given to Jimpsey Tiger. 1/2/2008 District Court’s Findings of Fact and 

Conclusions of Law at 6 (Seminole County No. CF-04-59). An allotment is land that 

is either owned by the United States in trust for an Indian or is owned by an Indian 

subject to statutory restrictions on alienation. Miami Tribe of Oklahoma v. United 

States, 656 F.3d 1129, 1133, n.4 (10th Cir. 2011). When Jimpsey Tiger died intestate 

in 1944, his land, including the tract at issue here, passed to his wife (Lena Tiger) and 

four children (George, Corena Mae, Mandy and Kizzie) in undivided 1/5 shares. 

Magnan v. State, 207 P.3d 397, 403 (Okla. Crim. App. 2009). Jimpsey Tiger was a 

full-blooded Seminole and his wife and children were all at least ½ Indian. Id. 

Accordingly, the interests of the heirs were restricted and, after August 4, 1947, could 

17


not be conveyed without approval by the Seminole County Court. 61 Stat. 731, § 1 

(1947); 47 Stat. 777, § 1 (1933). 

In 1950, Jimpsey Tiger’s widow, Lena Tiger, conveyed her interest in the land 

to Jimpsey Tiger’s son, George Tiger. Magnan, 207 P.3d at 403. The deed was what 

is known as a Carney-Lacher deed, and recited that the land was purchased with funds 

held in trust by the United States and that it was restricted against alienation, subject 

to the approval of the Secretary of the Interior. 12/6/2006 Motion for Evidentiary 

Hearing to Determine Subject Matter Jurisdiction, Ex. N: Title Opinion of Attorney 

5 

G. Dale Elsener, Ex. 1 (OCCA No. D-2005-683); see Lewis v. Moore, 199 F.2d 745, 

750, n.2 (10th Cir. 1952) (recognizing that a deed containing a clause forbidding 

conveyances without the approval of the Secretary of the Interior is commonly known 

as a Carney-Lacher deed). The deed from Lena Tiger to George Tiger was approved 

by the Seminole County Court. Elsener Title Opinion, Ex. 1. 

Later in 1950, George Tiger, Corena Mae Tiger and Mandy Tiger conveyed 

their interests in the property to Kizzie Tiger, who had married Redmond Wolf. 

Elsener Title Opinion, Ex. 2. This conveyance was approved by the Seminole County 

Court and the Department of the Interior, and was accomplished using a Carney- 

5 Exhibit N is Mr. Elsener’s title opinion, which includes exhibits 1 through 7. Hereinafter, 

Exhibit N will be referred to as “Elsener Title Opinion.” 

18


Lacher deed. Elsener Title Opinion, Ex. 2. Accordingly, as of 1950, Kizzie Tiger 

owned the entire surface estate of the allotment (and 1/5th of the mineral rights 

acquired by inheritance), including the tract at issue in this case, in restricted status. 

Magnan, 207 P.3d at 403; Elsener Title Opinion, Ex. 2. 

In 1970, Kizzie and Redmond Wolf conveyed the tract of land on which the 

murders would subsequently occur to the Seminole Housing Authority. Elsener Title 

Opinion, Ex. 3. The Seminole Housing Authority was to build a house on the land 

for the Wolfs. Elsener Title Opinion, Ex. 3. The effectiveness of the deed to the 

Seminole Housing Authority is the central issue in this case. The Seminole Housing 

Authority deeded the property back to Kizzie and Redmond Wolf in 1981. 12/6/2006 

Motion for Evidentiary Hearing to Determine Subject Matter Jurisdiction, Ex. Q at 

Bate Stamp BLD0024 (OCCA No. D-2005-683). Kizzie Wolf died in 1991, at which 

time all of her interest in the surface estate and her 1/5th interest in the mineral rights 

of the land in question were divided between her husband and children. Magnan, 207 

P.3d at 403. At the time of the murders, the aforementioned interests in the land 

remained in the possession of Kizzie Wolf’s heirs and their successors, all of whom 

19


6 

are Indians of ½ or more blood. Id.; 1/2/2008 District Court’s Findings of Fact and 

Conclusions of Law at 8 (Seminole County No. CF-04-59). 

Petitioner admits that the 1970 deed was effective as to Kizzie Wolf’s 1/5th 

inherited interest in the property, but contends that the Secretary of the Interior or his 

designee did not approve the deed as to Kizzie Wolf’s 4/5th purchased interest. 

Opening Br. at 26. In 1998, Carl King Woods, also an Indian, committed a murder 

at the exact same house at which these murders occurred. 1/2/2008 District Court’s 

Findings of Fact and Conclusions of Law at 20 (Seminole County No. CF-04-59). 

Mr. Woods was prosecuted by the United States in the Eastern District of Oklahoma. 

1/2/2008 District Court’s Findings of Fact and Conclusions of Law at 20 (Seminole 

County No. CF-04-59). The federal district court declined jurisdiction, finding that 

the Bureau of the Interior agreed to the conveyance of Kizzie Wolf’s entire interest 

in the property: 

on April 16th [1970] there was filed in the district court 

within and for Seminole County, State of Oklahoma an 

acknowledgement [sic] by M. Dean Swartz [sic], the 

United States trial attorney for the United States 

6 There have been several conveyance of the land before and after Kizzie Wolf’s death. 

Elsener Title Opinion at 5. However, these conveyances are immaterial to this case. If 

Respondent is correct and the 1970 conveyance removed all restrictions from the surface 

estate of the land, the property has been unrestricted ever since. If Petitioner is correct and 

the 1970 conveyance only removed restrictions as to 1/5th of the property, the subsequent 

conveyances without proper approval were ineffective and the land remains restricted. 

20


Department of Interior, acknowledging written notice of 

[the conveyance]. There was also an acknowledgement 

[sic] by Virgil N. Herrington, the area director of the 

Bureau of Indian Affairs, successor to the superintendent 

of the Five Civilized Tribes, and they both received notice. 

There is a transcript of the testimony that occurred in this 

proceeding and I will note for the record that it reflects that 

the petition to approve the deed was for all interest and not 

for simply a one-fifth interest. The transcript of the 

testimony reveals that M. Dean Swartz [sic] appeared as 

the U.S. trial attorney for the Bureau of Indian Affairs and 

the Department of Interior at the hearing. It was made 

clear at the hearing that the entire interest was being 

conveyed or approval was sought for the entire interest to 

be conveyed to the Housing Authority of the Seminole 

Nation for construction of a home. The warranty deed was 

presented at the time of the hearing and the -- and there 

was an acknowledgement [sic] of the signature and then it 

was asked if Mr. Swartz [sic], who was representing the 

B.I.A. and the Department of Interior, had any questions 

and there were no questions. The approval by the district 

court shows that it was an approval of the entire interest in 

the land, not a one-fifth interest. Thereafter, the order was 

entered and the order approving the deed and authorizing 

its delivery in the first paragraph provides that the Court 

approves the deed executed February 20, 1970, conveying 

all of their right, title and interest to the property. The 

record further reflects that the appearance of M. Dean 

Swartz [sic], United States trial attorney appearing on 

behalf of petitioners and the United States Department of 

Interior. The Court found that there was proper written 

notice to the United States trial attorney, to the area 

director of the Five Civilized Tribes, and so forth. 

Then the order that approves it states on the last page, 

quote, “The Court, therefore, finds that M. Dean Swartz 

[sic], United States trial attorney, has joined with the said 

21


petitioners and requested the Court to approve the deed 

without submitting same at public auction and has agreed 

that said conveyance would be in the best interest of the 

petitioner.” The Court then goes on to approve the deed 

conveying, quote, “...all of their right, title and interest in 

and to the aboved [sic] described property to the Housing 

Authority of the Seminole Nation of Oklahoma,” and 

confirms it. 

There is no question in this Court’s mind that the B.I.A. 

and the Department of Interior joined in this proceeding, 

consented to it, and there was approval of the deed. Even 

under the government’s theory that the Act [of 1947] only 

applies to inherited lands -- and I don’t know that that is 

entirely correct, but even giving the government that 

position, the BIA and Department of Interior still 

consented in, joined in and approved, and I think this was 

done in good faith. 

8/13/1998 Transcript of Hearing at 8-11, United States v. Woods (E.D. Okla. No. CR- 

7 

98-26-B ). The Assistant United States Attorney then agreed with the Court that Mr. 

Storts was representing the Bureau of Indian Affairs and that the Eastern District did 

not have jurisdiction, and the Court so ruled. 8/13/1998 Transcript of Hearing at 11- 

12, United States v. Woods (E.D. Okla. No. CR-98-26-B ). 

The Supreme Court has held that “federal jurisdiction over the offenses covered 

by the Indian Major Crimes Act [18 U.S.C. § 1153] is ‘exclusive’ of state 

jurisdiction.” Negonsott v. Samuels, 507 U.S. 99, 103-104 (1993). The OCCA 

7 This transcript was made part of the record in Petitioner’s case on direct appeal. 

22


recognized this fact. Magnan, 207 P.3d at 402. However, in determining whether a 

state court’s decision is contrary to or an unreasonable application of clearly 

established federal law as determined by the Supreme Court, “federal courts may no 

longer extract clearly established law from the general legal principles developed in 

factually distinct contexts.” House v. Hatch, 527 F.3d 1010, 1017 (10th Cir. 2008). 

Rather, 

Id. at 1016. 

clearly established law consists of Supreme Court holdings 

in cases where the facts are at least closely-related or 

similar to the case sub judice. Although the legal rule at 

issue need not have had its genesis in the closely-related or 

similar factual context, the Supreme Court must have 

expressly extended the legal rule to that context. 

Although the Supreme Court has had cases in which it decided whether a crime 

scene constituted Indian country for purposes of the Indian Major Crimes Act, 

Petitioner has not cited, and Respondent has not found, a Supreme Court case 

regarding what constitutes sufficient approval of a conveyance by the Secretary of the 

Interior. See Negonsott, 507 U.S. at 100-110 (holding that Congress had given the 

state of Kansas concurrent jurisdiction over crimes covered by the Indian Major 

Crimes Act); Solem v. Bartlett, 465 U.S. 463, 464-481 (1984) (analyzing whether a 

reservation had been diminished so as to permit the state to exercise jurisdiction over 

23


a crime that would otherwise fall within the Indian Major Crimes Act); United States 

v. John, 437 U.S. 634, 635-654 (1978) (deciding whether land was within a 

reservation for purposes of jurisdiction under the Indian Major Crimes Act). “The 

absence of clearly established federal law is dispositive under § 2254(d)(1).” House, 

527 F.3d at 1018. Accordingly, Petitioner has failed to establish that the OCCA’s 

decision was contrary to or an unreasonable application of clearly established federal 

law. 8 

Should this Court disagree, and find that the Supreme Court’s general 

pronouncements constitute clearly established federal law, Petitioner has failed to 

demonstrate that the OCCA’s decision was unreasonable. First it must be noted that 

the standard set by AEDPA is even more difficult to meet when the rule established 

by the Supreme Court is a general one. Richter, 131 S. Ct. at 786. Further, 

Petitioner’s task of establishing that the OCCA’s decision was unreasonable is made 

8 In the standard of review section of his brief, Petitioner cites cases holding that relief may 

be granted where the state court has unreasonably refused to extend a legal principle to a new 

context. Opening Br. at 24. However, there must first be a clearly established legal 

principle. House, 527 F.3d at 1015-1019. As demonstrated above, there are no clearly 

established legal principles regarding the approval of the Secretary of the Interior of the 

removal of restrictions from Indian allotments. 

24


much more onerous by the fact that there is a general presumption against federal 

9 

jurisdiction. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). 

In this case, not only is there a general presumption against federal jurisdiction, 

in this case the Eastern District had already found, before the murders in this case, 

that it did not have jurisdiction over the land at issue here. The OCCA merely agreed 

with the federal court, holding that the 1970 proceeding in Seminole County District 

Court “was in effect a combined proceeding that satisfied the requirements of both 

9 Petitioner argues that the OCCA was required to resolve any ambiguities in favor of finding 

the land to be Indian country. Opening Br. at 41-43. All of Petitioner’s cases set forth a 

canon of statutory construction, or construction of treaties between the United States 

government and Indian tribes. Petitioner has no authority for the proposition that a court 

must resolve any ambiguities in the process by which a single Indian has conveyed her 

property in favor of finding that the property was not properly conveyed. 

25


10 

the 1945 and 1947 Acts.” Magnan, 207 P.3d at 404. At this point, it should be 

reiterated that there is no clearly established federal law to the contrary. 

Notice was given to the United States trial attorney and to the area director of 

the Bureau of Indian Affairs. In 1970, the area director was the person to whom the 

Secretary of the Interior had delegated his authority to approve the removal of 

restrictions from allotted land. (12/13/2007 Tr. 29). The petition and the deed were 

designed to convey all of Kizzie Wolf’s interest in the land, as was made clear at the 

hearing. The deed did not indicate the property was restricted. Mr. Storts appeared 

not only on behalf of Ms. Wolf, who had her own attorney, but on behalf of the 

Department of the Interior. 8/13/1998 Transcript of Hearing at 8-11, United States 

v. Woods (E.D. Okla. No. CR-98-26-B ). As was found by Judge Burrage, both the 

10 Petitioner briefly argues that a 1955 Act, rather than the 1945 Act, should control because 

it was enacted later in time. According to Petitioner’s expert witnesses, the 1955 Act 

provides a means by which an Indian may apply to have restrictions removed from all of his 

or her property, rather than applying for approval of a particular conveyance (12/13/2007 Tr. 

24-25, 36); see 69 Stat. 666(d) (“When an order removing restrictions becomes effective, the 

Secretary shall cause to be turned over to the applicant full ownership and control of any 

money and property that is held in trust for him . . . .”). Accordingly, the 1955 Act does not 

apply in this case. In any event, Petitioner acknowledges that no matter which Act is relied 

upon, a conveyance of land purchased with restricted funds must be approved by the 

Secretary of the Interior. Opening Br. at 27-28. Nowhere in his brief does Petitioner argue 

that the different acts require different steps to be taken to secure Secretarial approval. The 

OCCA recognized that the conveyance of a portion of Kizzie Wolf’s interest in the land had 

to be approved by the state district court and a portion had to be approved by the Secretary 

of the Interior. Magnan, 207 P.3d at 403-404. As such, it is immaterial which statute the 

OCCA cited. 

26


Bureau of Indian Affairs and the Department of the Interior approved of and 

11 

consented to the conveyance. 8/13/1998 Transcript of Hearing at 8-11, United 

States v. Woods (E.D. Okla. No. CR-98-26-B ). Accordingly, even if the regulations 

of the Department of the Interior were not followed to the letter, it is clear that the 

Department, through the area director and Mr. Storts, approved of the deed. 

According to 25 C.F.R., § 1.2: 

Notwithstanding any limitations contained in the 

regulations of this chapter, the Secretary retains the power 

to waive or make exceptions to his regulations as found in 

chapter I of title 25 of the CFR in all cases where permitted 

by law and the Secretary finds that such waiver or 

exception is in the best interest of the Indians. 

The burden is on Petitioner to prove that the state court did not have jurisdiction, i.e. 

that the land is Indian country. Petitioner has failed to prove that Mr. Storts’ 

appearance at the hearing on the sale of the property, expressly on behalf of the 

Department of the Interior, was not intended to constitute Secretarial approval of the 

conveyance. 

11 Petitioner’s assertion that Mr. Storts did not request the state district court to approve the 

deed is flatly contradicted by the state district court’s order approving the deed. Petitioner 

has no evidence to rebut this factual finding. See 28 U.S.C. §2254(e)(1) (state court 

determinations of fact “shall be presumed correct” unless Petitioner rebuts the presumption 

by “clear and convincing evidence.”). 

27


Further strong evidence of the validity of the conveyance is the fact that the 

property is taxed by Seminole County. See Elsener Title Opinion at 1-2 (giving the 

legal description of the land); Doc. 27, Ex. 1 (property assessment for the land in 

question). Subsection (6)(c) of the 1947 Act provides that restricted land is taxexempt, 

therefore the land could not be taxed if it was still restricted. Kizzie Wolf’s 

heirs have apparently not attempted to avoid property taxes, as they could certainly 

do if they could prove the land was restricted. In addition, Kizzie Wolf’s heirs have 

made conveyances of the property without seeking approval, further indicating they 

believe it to be unrestricted. See Elsener Title Opinion at 5. For the foregoing 

reasons, it cannot be said that the OCCA’s holding constituted an extreme 

malfunction in Oklahoma’s criminal justice system. See Richter, 131 S. Ct. at 786 

(holding that habeas corpus is a “guard against extreme malfunctions in the state 

criminal justice systems”). 

Further, Petitioner is not entitled to relief assuming arguendo the 1970 

conveyance was technically invalid. It is entirely appropriate for a court to rely on 

equitable considerations to determine whether property retains its Indian character; 

even the Supreme Court has done so. In City of Sherrill, N.Y. v. Oneida Indian 

Nation of New York, 544 U.S. 197, 202 (2005), the Oneida Indian Nation claimed that 

they did not owe property taxes on land that was originally part of a reservation--but 

28


which had been subject to state governance for two centuries--after the Nation 

reacquired title to the land. The Supreme Court relied on “standards of federal Indian 

law and federal equity practice”--i.e. the non-Indian character of the land and its 

inhabitants, the regulatory authority that had been exercised by the state and the 

12 

Tribe’s long delay in seeking judicial relief--to find that the land was not Indian. 

Id. at 202-203. Further, the Supreme Court’s cases interpreting whether land is still 

part of a reservation to determine jurisdiction under the Indian Major Crimes Act 

recognize pragmatic concerns such as the burden on state and local governments 

when a former reservation is occupied primarily by non-Indians with a few surviving 

pockets of Indian allotments. See Solem, 465 U.S. at 471; see also International Shoe 

Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 

U.S. 310 (1945) (holding that due process permits the exercise of personal 

jurisdiction based on “contacts or ties with the state of the forum to make it 

reasonable and just according to our traditional conception of fair play and 

substantial justice to permit the state to [exercise jurisdiction].”) (emphasis added). 

Also, in cases not involving jurisdictional disputes, the Supreme Court has 

recognized the applicability of equitable considerations in disputes over land. For 

12 Thus, while a state’s justifiable expectations may not always be determinative of 

jurisdiction, see Opening Br. at 45, they are certainly a relevant consideration. 

29


example, in Felix v. Patrick, 145 U.S. 317, 325 (1892), the heirs of Sophia Felix, an 

Indian of one-half blood sought to reclaim land that was conveyed in spite of an 

express restriction on assignments. Someone acquired from Ms. Felix a blank power 

of attorney and quitclaim deed to the land. Id., at 325. Two years later, Patrick filled 

in his own name as grantee and used the power of attorney to acquire a warranty deed 

to the property. Id. The land remained in Patrick’s hands for nearly twenty-seven 

years, during which time a large portion of it was platted, divided and sold. Id. at 

325-326, 329. The Court held that the “real question” was whether equity entitled the 

heirs, who made no effort to assert their interest in the land for such an extended 

period of time, to possession of property that had been greatly improved in the 

meantime. Id. at 332-333. 

In this case, the equities overwhelmingly favor the State’s exercise of 

jurisdiction. As part of its analysis in City of Sherrill, the Supreme Court noted that 

“[a]s between States, long acquiescence may have controlling effect on the exercise 

of dominion and sovereignty over territory.” City of Sherrill, 544 U.S. at 218. As 

mentioned above, the land in this case is taxed by the State. When State law 

enforcement officials arrived at the scene of the murders, they were told by a local 

agent with the Bureau of Indian Affairs that the land was not Indian country. 

(12/13/2007 Tr. 16). As was discussed above, the Eastern District court has 

30


disclaimed jurisdiction over the land. For the above reasons, the State of Oklahoma 

has reasonably exercised jurisdiction, expending time and resources in reliance on the 

acquiescence of the federal court and federal authorities. 

Also of great significance is the fact that no individual with an actual interest 

in the land in question has ever challenged the 1970 conveyance, nor could they now. 

Oklahoma’s fifteen (15) year statute of limitations applies to lawsuits concerning land 

belonging to restricted Indians of the Five Civilized Tribes. Armstrong v. Maple Leaf 

Apartments, Ltd., 622 F.2d 466, 472 (10th Cir. 1979). Admittedly, the Seminole 

Nation Housing Authority only possessed the land for eleven (11) years before it was 

conveyed back to Kizzie Wolf. However, this Court has held that the doctrine of 

laches also applies to land belonging to restricted Indians of the Five Civilized Tribes. 

Id. 

In Armstrong, the plaintiff sought to quiet title to a tract of land that she had 

conveyed by warranty deed without the approval of the county court. Id. at 467. This 

Court agreed that at least part of the plaintiff’s interest in the land was subject to the 

approval requirements of the 1947 Act. Id. at 468-469. This Court noted that the 

plaintiff was educated, had owned a business with her husband, had used part of the 

purchase price to build a new house, was represented by an attorney and was aware 

of the approval requirement. Id. at 469. Eight years after the deed was executed, the 

31


original purchaser sold the land to a corporation that constructed apartments on the 

land. Id. at 470. The plaintiff was aware of the construction. Id. This Court held 

that “the delay of over eight years with knowledge of the facts and law and with 

reliance by defendants on the deed, the creation of substantial improvements, and the 

detriment by reason of the delay are more than sufficient to require the application of 

the doctrine [of laches].” Id. at 472. 

Respondent recognizes that this is not an action by the heirs of Kizzie Wolf to 

quiet title to the land. However, if Kizzie Wolf had not reacquired the property, she 

(or her heirs or successors in interest to the property) would be prevented by the 

statute of limitations and/or the doctrine of laches from challenging the validity of the 

1970 conveyance. Petitioner should not be heard to complain about a conveyance of 

land that he has no interest in, when those who do have an interest could not. 

In addition to all of the above, it appears that Kizzie Wolf’s heirs could obtain 

the Secretary of the Interior’s retroactive approval of the deed. In Lykins v. McGrath, 

184 U.S. 169, 169 (1902), the patentee of a tract of restricted land conveyed the land, 

and the conveyance was approved by the Secretary of the Interior almost a year after 

the deed. However, the patentee died after the conveyance and before the Secretary’s 

approval. Lykins, 184 U.S. at 169. The patentee’s heirs sued to eject the purchaser 

from the land. Id. The Supreme Court held that: 

32


It must therefore be considered as settled that the consent 

of the Secretary of the Interior to a conveyance by one 

holding under a patent like the present may be given after 

the execution of the deed, and when given is retroactive in 

its effect and relates back to the date of the conveyance. 

But the applicability of the doctrine of relation is denied on 

the ground that the interests of new parties, to wit, the 

plaintiffs, have sprung into being intermediate the 

execution of the conveyance and the approval of the 

Secretary. But one of the purposes of the doctrine of 

relation is to cut off such interests, and to prevent a just and 

equitable title from being interrupted by claims which have 

no foundation in equity. The doctrine of relation may be 

only a legal fiction, but it is resorted to with the view of 

accomplishing justice. What was the purpose of imposing 

a restriction upon the Indian's power of conveyance? Title 

passed to him by the patent, and but for the restriction he 

would have had the full power of alienation the same as 

any holder of a fee-simple title. The restriction was placed 

upon his alienation in order that he should not be wronged 

in any sale he might desire to make; that the consideration 

should be ample; that he should in fact receive it, and that 

the conveyance should be subject to no unreasonable 

conditions or qualifications. It was not to prevent a sale 

and conveyance, but only to guard against imposition 

therein. When the Secretary approved the conveyance it 

was a determination that the purposes for which the 

restriction was imposed had been fully satisfied; that the 

consideration was ample; that the Indian grantor had 

received it, and that there were no unreasonable 

stipulations attending the transaction. All this being 

accomplished, justice requires that the conveyance should 

be upheld, and to that end the doctrine of relation attaches 

the approval to the conveyance and makes it operative as 

of the date of the latter. 

33


Id. at 171-172. As the heirs had no equitable rights superior to those of the purchaser, 

the Court held that the title conveyed by the deed must be upheld. Id. at 173. 

In Wesley Wishkeno et al. v. Deputy Assistant Secretary-Indian Affairs 

(Operations), 11 IBIA 21, 22-23 (I.B.I.A. 1982), the Board of Indian Appeals held 

that: 

it is clear that the Secretary or his delegate has the 

authority to approve a conveyance of Indian trust lands 

after the death of the Indian grantor if the Secretary is 

satisfied that the consideration for conveyance was 

adequate; the grantor received the full consideration 

bargained for; and there is no evidence of fraud, 

overreaching, or other illegality in the procurement of the 

conveyance. Such approval will be applied retroactively to 

the date of the attempted conveyance and will extinguish 

third-party rights arising after the date of the conveyance, 

including rights acquired through inheritance or devise. 

In this case, there is no dispute that the conveyance was adequate, Kizzie Wolf 

received the full consideration bargained for and there was no fraud, overreaching or 

other illegality in the procurement of the conveyance. Therefore, the purposes of the 

approval requirement were fully satisfied. Kizzie Wolf, her husband, her children and 

every other subsequent owner of the land have never challenged the conveyance and 

have acted as if the conveyance was valid by making several conveyances without 

seeking approval and by allowing the property to be taxed. See Elsener Title Opinion 

at 5. 

34


It appears that retroactive approval of the deed could be easily obtained if any 

person with an interest in the land had a reason to seek it. Thus, even if there was a 

technical defect in the conveyance forty-two years ago, no one--including a federal 

court judge and the actual owners of the land--other than Petitioner and his expert 

witnesses consider the land to be Indian country. 13 

Respondent recognizes that most of the cases he relies upon involve civil 

actions regarding property interests. However, in this case, jurisdiction is dependent 

upon a determination of property interests, so it is appropriate to consider cases 

relevant to the determination of property rights. Further, as was discussed earlier, the 

question of jurisdiction is no less subject to such practical and equitable 

considerations than is the determination of property ownership. 

The reality of this case is that Petitioner is the only person in the last forty years 

to challenge the validity of the 1970 conveyance. Petitioner has no interest in the 

property, but is merely trying to avoid criminal liability for murders he admits he 

committed by challenging a transfer of property that was fair in every respect and has 

been relied upon for forty years. The State of Oklahoma relied upon the opinion of 

local federal authorities (who in turn relied upon the federal court determination in 

13 There was one dissenting judge in the OCCA who believed the land to be restricted. 

Magnan, 207 P.3d at 414-415 (Chapel, J. dissenting). 

35


1998) and proceeded at great expense to prosecute Petitioner. Accordingly, even if 

there was a technical defect in the Wolf’s deed to the Seminole Housing Authority, 

the OCCA did not unreasonably determine that the state properly exercised 

jurisdiction in this case. Petitioner has failed to “show that the state court’s ruling on 

the claim being presented in federal court was so lacking in justification that there 

was an error well understood and comprehended in existing law beyond any 

possibility for fairminded disagreement.” Richter, 131 S. Ct. at 786-787. Therefore, 

Petitioner is not entitled to relief. 

C. Resulting Trust 

Petitioner also argues that the 1970 conveyance was, at most, a resulting trust, 

which did not extinguish the Indian title to the land. Petitioner did not raise this 

argument in state court. A state prisoner generally must exhaust his claims in state 

court before a federal court can consider a habeas corpus petition. See 28 U.S.C. § 

2254(b)(1)(A); Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). If Petitioner 

now attempted to return to state court and present his resulting trust claim, that claim 

would be barred. See Okla. Stat. tit. 22, § 1086 (2011); Okla. Stat. tit. 22, § 1086(C) 

(2011); Fowler v. State, 896 P.2d 566, 569 (Okla. Crim. App. 1995). This Court has 

repeatedly found Oklahoma’s bar of claims not raised on direct appeal to be 

independent and adequate with respect to claims other than ineffective assistance of 

36


counsel. See Cannon v. Gibson, 259 F.3d 1253, 1269 (10th Cir. 2001) (bar is 

adequate for Brady claims); Hale v. Gibson, 227 F.3d 1298, 1330 (10th Cir. 2000) 

(bar is independent and adequate for Brady claims); Steele v. Young, 11 F.3d 1518, 

1521-22 (10th Cir. 1993) (bar of double jeopardy claims is independent and 

adequate). 

Petitioner has not argued that he is entitled to have the procedural bar 

overlooked on the basis of cause and prejudice or a fundamental miscarriage of 

justice. See Spears v. Mullin, 343 F.3d 1215, 1255 (10th Cir. 2003) (recognizing 

exceptions to a procedural bar if the petitioner can establish cause and prejudice or 

that the court’s refusal to review the claim will result in a fundamental miscarriage 

of justice). Accordingly, this Court should not consider this claim. See Steele v. 

Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (when it is obvious that the state court 

would find the unexhausted claim to be procedurally barred, the federal court will 

forego the needless “judicial ping-pong” and hold the claim procedurally barred from 

habeas review). 

Petitioner also failed to present this claim in the district court. As such, 

Petitioner has waived this claim. See Toles v. Gibson, 269 F.3d 1167, 1179 (10th Cir. 

2001) (refusing to address a claim that was not adequately presented to the district 

court). Petitioner’s claim that the 1970 conveyance did nothing more than create a 

37


resulting trust is unexhausted and waived. Therefore, this claim must not be 

considered by this Court. 

Alternatively, this claim is easily disposed of on the merits. See Hooks v. 

Workman, 689 F.3d 1148, 1179 (10th Cir. 2012) (exercising discretion to bypass 

issues of exhaustion and procedural bar and reject the claim on its merits). As there 

has been no prior determination of this claim in any court, this Court’s review is de 

novo. Douglas v. Workman, 560 F.3d 1156, 1170-1171 (10th Cir. 2009). 

Initially, it cannot be said with certainty that Oklahoma law would treat the 

conveyance as a resulting trust. Petitioner has not cited any Oklahoma cases holding 

that a sale of land to an Indian Housing Authority creates a resulting trust. Nor is 

there any evidence in the record that “Kizzie Tiger Wolf retained all benefits to the 

property while the house was constructed and paid for . . . .” See Opening Br. at 50. 

Further, even if Oklahoma law would treat the sale as a resulting trust, 

Petitioner has cited no cases or statutes supporting his argument that an Indian 

allotment is not extinguished if the seller retains only an equitable interest in the 

property. In Housing Authority of the Seminole Nation v. Harjo, 790 P.2d 1098 

(Okla. 1990), a forcible entry and detainer case, the question before the court was 

whether land conveyed to the housing authority was a dependent Indian community. 

It is very significant that, although the land in question was a restricted allotment 

38


before the conveyance to the housing authority, the Oklahoma Supreme Court did not 

even address whether the Indian title to the allotment had been extinguished. See Id. 

at 1099-1104. Rather, the court held that, by virtue of federal superintendence over 

the land, it was a dependent Indian community. Id. at 1100-1104. Thus, it appears 

that the parties and the court assumed the restricted allotment had been extinguished. 

Further, Petitioner in this case is not claiming that the land on which he 

committed the murders is a dependent Indian community, and for good reason. There 

is no evidence in the record of federal superintendence over the land at the time of the 

murders. In fact, as noted above, the land was taxed by Seminole County and a 

federal district court had already disclaimed jurisdiction. 

In Ahboah v. Housing Authority of Kiowa Tribe of Indians, 660 P.2d 625, 626 

(Okla. 1983), also a forcible entry and detainer case, the appellants leased their trust 

allotments to the housing authority. After homes were constructed on the lands in 

question, the housing authority leased the land back to the appellants. Id. The 

Oklahoma Supreme Court first rejected the housing authority’s argument that all 

tribal interest in the land was extinguished when the reservation was dissolved and 

divided into allotments. Id. at 627-629. In so holding, the court simply applied 

Supreme Court law to find that an allotment of land to the United States in trust for 

an Indian is Indian country, regardless of whether the land is within the boundaries 

39


of a reservation. Id. at 628-629. The court also rejected the argument that a lease 

deprives land of its Indian character. Id. at 629. 

In Petitioner’s case, the land was not leased; it was sold in fee simple. As 

stated above, Petitioner has not proven that Oklahoma law would regard the sale as 

a resulting trust or that such an equitable interest transforms land into Indian country 

when the legal title to the land is held by a non-Indian. Further, as noted above, there 

is no evidence of federal superintendence over the land at the time of the murders. 

Cf. Ahboah, 660 P.2d at 629 (noting the extensive federal regulation of leased 

allotments). 

Petitioner also relies upon United States v. Jewett, 438 F.2d 495 (8th Cir. 

1971), in which the defendant was tried in federal court for a crime committed on a 

trust allotment. The issue of whether the allotment had been extinguished was not 

before the court. Rather, the claim made by the defendant was that the best evidence 

rule was violated by the testimony of a realty officer regarding records of transfers 

of the land. Id. at 497-498. As no one in Jewett challenged whether the land was 

Indian country, that case is inapposite. 

Further, in Jewett it was undisputed that at the time of the crime, the legal title 

to the land was held by the United States in trust for the tribe. Id. at 497. By contrast, 

Petitioner’s argument that the federal government was “effectively” the trustee of the 

40


land on which he committed the murders is quite a stretch. See Opening Br. at 54. 

From 1970 to 1981, legal title to the land was in the hands of a state-created housing 

authority. See Okla. Stat. tit. 63, § 1057 (creating Indian housing authorities as 

agencies of the State). At the time of the murders, legal (and equitable) title to the 

land belonged to individuals. As set forth above, there is no evidence that the federal 

government had any involvement with the land at the time of the murders. 

Accordingly, Jewett does not entitle Petitioner to relief. 

Finally, as a matter of policy, Petitioner’s argument is untenable. Determining 

whether land is Indian country is complicated and often, as in this case, requires a 

title search. See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 630 (1977) (Marshall, 

J., dissenting) (criticizing the majority’s finding that a reservation has been 

diminished because such holding will require law enforcement to search tract books 

to determine jurisdiction); Ute Indian Tribe of the Uintah and Ouray Reservation v. 

State of Utah, 114 F.3d 1513, 1530 (10th Cir. 1997) (recognizing that a title search 

may be necessary to determine whether land constitutes Indian country). If law 

enforcement officials cannot rely upon documents in the chain of title, but instead 

have to research state and federal law, as well as the factual circumstances 

surrounding every prior conveyance of the land to determine whether there might be 

equitable interests in the land that remain in the hands of Indians, their task will be 

41


all but impossible. As such intent appears nowhere on the face of section 1151, and 

Petitioner offers no relevant cases supporting it, this Court must deny relief. 

D. The Mineral Interests 

Petitioner also contends that the land is Indian country because 4/5ths of the 

14 

mineral interests in the land remain restricted. The OCCA applied its previous 

decision in Murphy v. State, 124 P.3d 1198 (Okla. Crim. App. 2005) to hold that the 

State’s interests in the surface property “overwhelmed any fractional interest the 

Indian heir of the original allottee owned in the unseen mineral estate.” Magnan, 207 

P.3d at 404-406. The OCCA’s decision in Murphy was affirmed on habeas review 

by the district court: 

the Major Crimes Act was not enacted to cover crimes 

occurring on subsurface unobservable mineral interests. 

Rather, the crimes enumerated in the Act are crimes which 

would occur on the surface of the land, i.e. murder, 

manslaughter, kidnapping, maiming, incest, etc. Congress 

simply was not, by enacting the Major Crimes Act, 

concerned with crimes which could occur on the mineral 

interest of an Indian allotment. Furthermore, Petitioner 

fails to identify any arguable nexus between the restricted 

Indian mineral interest and the crime of murder. 

Murphy v. Sirmons, 497 F. Supp. 2d 1257, 1291 (E.D. Okla. 2007). 

14 Petitioner incorrectly states that Kizzie Wolf had a 4/5ths interest in the mineral rights. 

Opening Br. at 57. Respondent does not dispute that 4/5ths of the mineral rights remain 

restricted. However, Kizzie Wolf only acquired 1/5th of the mineral rights in the land in 

question. See Elsener Title Opinion at 3-4. 

42


There is no clearly established federal law regarding what effect, if any, 

mineral interests have in determining whether land is considered Indian country. 

Petitioner relies upon United States v. Ramsey, 271 U.S. 467 (1926) for the 

proposition that “any restriction associated with an allotment means the allotment 

retains its Indian Country characteristic . . . .” Opening Br. at 57. Ramsey, which 

made no mention of mineral interests, merely holds that an allotment constitutes 

Indian country whether it is a trust allotment or a restricted allotment. Ramsey, 271 

U.S. at 470-471. Consequently, Ramsey does not clearly establish that mineral 

interests are relevant to the determination of what constitutes Indian country. 

Petitioner also cites Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 

520, 525 (1998). In Venetie, the issue was whether a particular piece of land was a 

dependent Indian community. The Court determined that a dependent Indian 

community exists when there is both a federal set-aside of land for Indian use and 

federal superintendence of the land. Id. at 530. The court below had recognized 

these two requirements and imposed a six factor balancing test to determine whether 

the requirements were met. Id. at 525-526. The Supreme Court rejected the 

balancing test because three of the factors were “extremely far removed from the 

requirements themselves.” Id. at 531, n.7. The Court did not hold that it would be 

inappropriate to use a balancing test that applied factors that were relevant to the 

43


ultimate determination. As there is no clearly established federal law regarding the 

relevance of mineral interests in determining whether land is Indian country or the 

test to be applied, Petitioner’s claim must fail. House, 527 F.3d at 1018 (“The 

absence of clearly established federal law is dispositive under § 2254(d)(1).”). 

In fact, there are Supreme Court cases that strongly suggest that mineral 

interests are not relevant to the determination of whether land is Indian country. In 

Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351 (1962), 

the question was whether an Indian reservation had been dissolved, thus allowing the 

state court to exercise jurisdiction over crimes committed within the boundaries of the 

reservation. A 1906 Act provided for the reservation to be divided into allotments, 

with the surplus lands to be settled by non-Indians. Id. at 354-355. Significantly, the 

Act also “provided for the sale of mineral lands.” Id. In spite of the partial settlement 

of the land by non-Indians, and the sale of mineral interests, the Supreme Court found 

the reservation was not dissolved. Id. at 355-357. 

Also, in South Dakota v. Bourland, 508 U.S. 679 (1993), the Supreme Court 

held that the tribe’s right to regulate fishing by non-Indians on reservation land was 

terminated by the tribe’s conveyance of land to the government. The fact that the 

tribe had retained all mineral interests in the land did not affect the Court’s analysis. 

See Bourland, 508 U.S. at 684. 

44


In Crow Tribe of Indians v. State of Mont., 650 F.2d 1104, 1107 (9th Cir. 

1981), the state was attempting to tax coal mined by non-Indians from a reservation. 

The tribe had ceded the surface estate of a large portion of the reservation to open it 

for settlement by non-Indians. Id. The mineral interest under the ceded strip was 

largely retained by the United States in trust for the benefit of the tribe. Id. The 

Ninth Circuit had previously held that the reservation was disestablished and the state 

had criminal jurisdiction over the land. Little Light v. Crist, 649 F.2d 682, 685 (9th 

Cir. 1981). 

Although neither Seymour nor Crist directly answers the question presented 

here, they both strongly suggest that the status of the surface estate is all that matters 

in determining whether land is Indian country. Those cases also prove that there is 

no clearly established federal law holding land in which there is a restricted mineral 

interest constitutes Indian country. See also Osage Nation v. Irby, 597 F.3d 1117 

(10th Cir. 2010) (finding disestablishment of a reservation in spite of the fact that the 

tribe retained all of the mineral rights). 

Further, Venetie and Ramsey support the OCCA’s decision. The Supreme 

Court’s cases regarding Indian country, in all three of its forms, hold that what makes 

land Indian country is a federal set-aside and federal superintendence of the land. See 

Venetie, 522 U.S. at 527-530 (holding that 18 U.S.C. § 1151 codified the Court’s 

45


earlier cases holding that land is Indian country if there is a federal set-aside and 

federal superintendence); Ramsey, 271 U.S. at 471 (holding, in a case involving 

allotted land, that what is relevant is that the United States government possesses 

supervisory control over the land to ensure that it is used to benefit the Indian 

allottee); United States v. Pelican, 232 U.S. 442, 447 (1914) (holding that an 

allotment carved out of a former reservation is still Indian country because the land 

was “set apart for Indians under governmental care”). As the surface estate of the 

land in question in Petitioner’s case is no longer restricted, it is the State, not the 

federal government, who has superintendence over the land. In fact, as mentioned 

above, the property is subject to local property taxes. The murders in this case were, 

of course, committed on the surface of the land. Federal superintendence over the 

minerals under the land has no bearing on the commission of crimes on the surface. 

Accordingly, the OCCA reasonably concluded that non-Indian land does not become 

Indian country merely because a portion of the mineral interests remain restricted. 

Petitioner has offered no clearly established Supreme Court law that is 

contradicted by the OCCA’s holding. Petitioner does claim that “title” must 

presumptively be determined by reference to Oklahoma law, and that Oklahoma law 

requires a finding that a land owner’s reservation of a mineral interest does not 

extinguish his “Indian title.” The question here is not how Oklahoma defines title, 

46


but what Congress meant by the words “Indian titles.” Further, Petitioner’s argument 

that Oklahoma law recognizes a mineral interest as a separate estate in real property 

actually works against him. The fact that the mineral estate in the land is separate 

confirms that Kizzie Wolf’s family members’ reserved mineral interests do not affect 

the surface estate of the land. 

Petitioner also argues that because Congress specifically excluded subsurface 

interests in land from the definition of “Indian Lands” in another statute, but did not 

specifically mention subsurface interests in section 1151, Congress must have 

intended mineral interests to constitute Indian country in section 1151. Opening Br. 

at 60. In a statute dealing with conservation of archaeological resources, Congress 

defined “Indian lands” as “lands of Indian tribes, or Indian individuals, which are 

either held in trust by the United States or subject to a restriction against alienation 

imposed by the United States except for any subsurface interests in lands not owned 

or controlled by an Indian tribe or an Indian individual.” 16 U.S.C. § 470bb(4). 

According to Petitioner, the fact that Congress excluded subsurface interests in that 

statute indicates it did not intend to exclude mineral interests from the definition of 

Indian country in 18 U.S.C. § 1151. 

This argument also works against Petitioner. For one thing, section 470bb was 

enacted in 1979, much later than section 1151's enactment in 1948. Further, 

47


archaeological resources are most likely to be found under the surface of the land. 

Therefore, Congress was tying the definition of Indian land to the nature of the right 

at issue, i.e. if Indians do not own the subsurface estate where the archaeological 

resources are found, then that subsurface estate is not considered Indian land. The 

same is true of Petitioner’s reliance upon HRI, Inc. v. E.P.A., 198 F.3d 1224, 1254 

(10th Cir. 2000), in which this Court held that, pursuant to the Safe Water Drinking 

Act and where Congress clearly intended to regulate water rights for the benefit of 

Indians regardless of whether ownership of the surface and mineral estates were split, 

the Environmental Protection Agency had jurisdiction to regulate drinking water if 

either the surface or mineral estate was owned by Indians. As argued above, criminal 

jurisdiction relates only to the surface of the land. Therefore, ownership of mineral 

interests has no bearing on criminal jurisdiction. 

Petitioner also argues that Congress’s intent is made clear by the fact that it 

used the plural “titles” in section 1151(c). The statute refers to “Indian allotments, 

the Indian titles to which have not been extinguished . . . .” 18 U.S.C. § 1151(c). The 

plural “titles” is used merely to be consistent with the plural “allotments.” It is a very 

big stretch to infer that by virtue of being grammatically correct, Congress intended 

Indian interests in mineral rights to determine criminal jurisdiction. 

48


Finally, Petitioner argues that this Court’s decision in Pittsburg & Midway 

Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir. 1995) supports his 

interpretation of section 1151. In Watchman, a mining company was challenging 

taxes imposed by the tribe on its operations at a mine that was outside the boundaries 

of the tribe’s reservation. Id. at 1534. The area of the mine was approximately 

twenty to twenty-five square miles. Id. Forty-seven percent of the surface estate to 

the area encompassing the mine was owned by the United States in trust for 

15 

individual Indian allottees. Id. None of the subsurface coal rights were owned by 

the United States in trust or by individual Indians. Id. at 1534-1535. 

The mining company argued that the tribe did not have jurisdiction because 

none of the subsurface rights were within Indian country. Id. at 1542. This Court 

disagreed, finding it “untenable” that jurisdiction would depend on commercial 

16 

transactions between various parties and could change at any time. Id. Rather, this 

Court held that “the mine is at least in part located in Indian country” because of the 

47% of the surface estate that constituted an allotment. Id. at 1541. This Court did 

15 This 47% was comprised of 48 separate allotments. Id. at 1536. 

16 This language in Watchman overlooks the fact that, as in this case, a determination of 

whether land is Indian country will very often depend on transactions between various parties 

and jurisdiction can change as the result of a single transaction. This is just as true of the 

surface estate as it is of the mineral estate. 

49


not hold that the entire surface estate of the area of the mine was Indian country. Nor 

did this Court hold that the subsurface estate was Indian country. Rather, “the 48 

trust allotments comprising 47% of the surface area of the South McKinley Mine site 

are Indian country by definition under 18 U.S.C. § 1151(c).” Id. at 1542. 

The ultimate question before this Court was whether the federal courts were 

required to abstain from deciding the jurisdictional question until after the tribal court 

had been given an opportunity to hear the issue. Id. at 1534. The abstention doctrine 

requires federal courts to abstain “when a suit sufficiently implicates Indian 

sovereignty or other important interests.” Id. at 1542. This Court did not believe that 

the 47% of the surface estate that was held in trust was sufficient to require 

abstention. Id. Therefore, this Court remanded to the district court to determine 

whether the area including the mine was also a dependent Indian community. Id. 

Watchman is inapplicable to this case. As stated above, this Court was not 

making an ultimate determination of jurisdiction. All this Court determined was that 

the 48 separate allotments that were held in trust by the government were Indian 

country. Therefore, there may be a sufficient tribal interest to require federal 

abstention. This Court did not hold that the entire area encompassing the mine was 

Indian country because 47% of the surface estate was restricted. Nor did this Court 

50


hold that the subsurface estate was Indian country because part of the surface estate 

was. 

Thus, Watchman is entirely consistent with Respondent’s argument that for 

purposes of determining criminal jurisdiction, it is only the surface estate that matters. 

Watchman confirms that for purposes of determining Indian country, the surface and 

subsurface estates may be treated separately. See Watchman, 52 F.3d at 1542 

(holding that the 47% of the surface area is Indian country). Petitioner committed 

the murders on the surface of the land, which is no longer Indian country. 

Accordingly, Watchman does not afford Petitioner relief. 

There is no clearly established federal law requiring a court to consider mineral 

rights in determining whether land is Indian country. In fact, the Supreme Court’s 

cases strongly suggest that mineral interests are irrelevant. Even if a portion of the 

mineral estate of the property at issue in this case is considered Indian country, the 

surface estate where the murders occurred is not Indian country. Accordingly, the 

OCCA’s decision is not contrary to or an unreasonable application of clearly 

established federal law. Petitioner is not entitled to relief. 

CONCLUSION 

A federal judge determined that the land at issue was not Indian country. The 

State relied upon that finding. Petitioner, a person with no interest in the land, now 

51


attempts to nullify all of the time and expense of his prosecution by posing a highly 

technical challenge to a forty-two year old conveyance that has been relied upon for 

all that time. Petitioner has simply not met his burden of overcoming the presumption 

against federal jurisdiction. As such, the OCCA’s decision was not erroneous, much 

less unreasonable. For the reasons set forth herein, Respondent respectfully requests 

this Court affirm the district court’s denial of habeas relief as to all of Petitioner’s 

claims. 

STATEMENT REGARDING ORAL ARGUMENT 

Respondent respectfully does not request oral argument in this case. Counsel 

believes the issues in this death penalty case have been sufficiently presented in the 

briefs such that this Court would not be materially aided by the presentation of oral 

argument. 

Respectfully submitted, 

E. SCOTT PRUITT 

ATTORNEY GENERAL OF OKLAHOMA 

S/ JENNIFER L. CRABB 

JENNIFER L. CRABB, OBA#20546 

ASSISTANT ATTORNEY GENERAL 

313 NE 21st Street 

Oklahoma City, Oklahoma 73105 

(405) 521-3921 FAX (405) 522-4534 

fhc.docket@oag.state.ok.us 

jennifer.crabb@oag.ok.gov 

ATTORNEYS FOR RESPONDENT 

52


CERTIFICATE OF COMPLIANCE 

As required by Fed. R. App. P. 32(a)(7)(C), I hereby certify that this brief is 

proportionally spaced and contains 12,798 words. 

I relied on my word processor to obtain the count and it is: WordPerfect X5. 

I certify that the information on this form is true and correct to the best of my 

knowledge and belief formed after a reasonable inquiry. 


CERTIFICATE OF SERVICE 

I hereby certify that a copy of this Brief of Respondent/Appellee was 

electronically filed with the Clerk of this Court on October 12, 2012, and for 

electronic transmission to the following: 

Chad A. Readler, careadler@jonesday.com 

Gary Peterson, gp@garypeterson.com 

Steven A. Broussard, sbroussard@hallestill.com 

Michael J. Lissau, mlissau@hallestill.com 


CERTIFICATE OF DIGITAL SUBMISSION 

This is to certify that: 

1. All required redactions have been made and, with the exception of those 

redactions, every document submitted in Digital Form or scanned PDF format is an 

exact copy of the document filed with the Clerk; 

2. The digital submissions have been scanned for viruses with Sophos Endpoint 

Security Control 10.0, Updated 10/12/12, and according to said program, are free of 

viruses. 

s/ JENNIFER L. CRABB 

53

Oklahoma Answer Brief - Turtle Talk

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